Social Movements and Judging: An Essay on Institutional Reform Litigation and Desgregation in Dallas, Texas

This Article discusses the political and legal barriers that have surfaced to undermine the ability of courts to fashion remedies that offer justice to aggrieved individuals and to render rights-based institutional reform litigation a judicial relic. Part II examines the historical development of institutional reform litigation and examines the political factors that created the opportunity for dramatic changes in legal approaches to the issue of racial inequality. Part III examines litigation challenging segregation in Dallas public schools. It also discusses cases filed in the immediate post-Brown v. Board of Education era and contrasts those cases with Judge Sanders\u27s rulings on the subject. In addition, Part III considers social and political changes that informed Judge Sanders\u27s rulings, placing particular emphasis on Supreme Court rulings and social movement activity that influenced and framed the battle over educational equality in Dallas. Part IV examines the political and doctrinal barriers that have led to the sharp decline of institutional reform litigation and that impede the ability of courts to offer relief to subordinate communities. Part IV also considers whether political opportunities exist for reigniting a vigorous commitment to substantive justice within the nation\u27s courts and legislatures

Majority Politics and Race Based Remedies

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination but embraces affirmative action for diversity purposes. Yet, as ongoing litigation demonstrates, the countermovements to antiracism that oppose affirmative action seek to dismantle race conscious state action altogether, and given recent personnel changes on the Court, this more palatable justification for affirmative action, having escaped judicial invalidation in Grutter v Bolinger, faces judicial invalidation once again. Part I highlights the Court\u27s opposition to racial remedies and its acceptance of diversity in affirmative action litigation. Part I also discusses developments in judicial remedies law as an additional basis for demonstrating the Court\u27s hostility to racial redress and its alignment with mainstream political forces. Part II discusses the response of contemporary antiracist actors to judicial conservatives-particularly the proposals by several Critical Race Theorists that seek to de-emphasize race as a vehicle for navigating the political and legal landscape that opposes race-based remedies. Part III offers direction for future antiracist advocacy in a conservative political opportunity structure

Dissecting Axes of Subordination: The Need for A Structural Analysis

Proceedings of a criminal trial in Dallas, Texas, demonstrate the vulnerability of LGBT individuals to judicial bias. Although the jury convicted the defendant of murdering two gay males, the judge explained his light sentence: I put prostitutes and gays at about the same level, and I\u27d be hard put to give somebody life for killing a prostitute . . . had [the victims] not been out there trying to spread AIDS, they\u27d still be alive today . . . These two guys that got killed wouldn\u27t have been killed if they hadn\u27t been cruising the streets picking up teen-age boys . . . I don\u27t care much for queers cruising the streets. I\u27ve got a teen-age boy. An investigation by the Texas State Commission on Judicial Conduct cleared the judge of any wrongdoing. This Article analyzes the problem of judicial bias as a structural matter, and it encourages legal scholars to resist treating it as an atomistic or individualized phenomenon. This Article addresses two important issues related to the task of unveiling and challenging the institutional nature of anti-gay bias. In Part II, this Article explains in greater detail how a structural analysis of judicial bias can lead to a richer understanding of subordination by uncovering the subtle, hidden, and ideological roots and manifestations of oppression. Part III argues that law and sexuality scholars must conduct a multidimensional reading of judicial heterosexism- that is, in order to appreciate fully the structural dimensions of judicial bias against gay, lesbian, bisexual, and transgender individuals, we must recognize that this bias exists as part of a larger system of domination along race, gender, and class lines

Majority Politics and Race Based Remedies

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination but embraces affirmative action for diversity purposes. Yet, as ongoing litigation demonstrates, the countermovements to antiracism that oppose affirmative action seek to dismantle race conscious state action altogether, and given recent personnel changes on the Court, this more palatable justification for affirmative action, having escaped judicial invalidation in Grutter v Bolinger, faces judicial invalidation once again. Part I highlights the Court\u27s opposition to racial remedies and its acceptance of diversity in affirmative action litigation. Part I also discusses developments in judicial remedies law as an additional basis for demonstrating the Court\u27s hostility to racial redress and its alignment with mainstream political forces. Part II discusses the response of contemporary antiracist actors to judicial conservatives-particularly the proposals by several Critical Race Theorists that seek to de-emphasize race as a vehicle for navigating the political and legal landscape that opposes race-based remedies. Part III offers direction for future antiracist advocacy in a conservative political opportunity structure

Progressive Race Blindness?: Individual Identity, Group Politics, and Reform

Critical Race Theorists advance race consciousness as a positive instrument for political and legal reform. A growing body of works by left-identified scholars, however, challenges this traditional progressive stance toward race consciousness. After summarizing the contours of this budding literature, this Article criticizes the progressive race blindness scholarship on several grounds and offers an alternative approach to race consciousness that balances skepticism towards the naturalness of race with a healthy appreciation of the realities of racial subjugation and identity

The \u3ci\u3eMajoritarian\u3c/i\u3e Difficulty: Affirmative Action, Sodomy, and Supreme Court Politics

Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court\u27s decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. Prominent judicial commentators have described the decisions as important, and unexpected, civil rights victories from a markedly conservative Court. Liberal and conservative scholars and activists seem to agree with this description: mainline civil rights organizations and liberal scholars view the decisions as examples of the Court protecting and advancing the interests of disadvantaged groups, while conservatives, apparently accepting this portrayal, argue that these cases demonstrate that the Court has aligned itself with leftist and elitist interests, rendering its opinions incongruent with majoritarian public thought. This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, rather than dismantle, social subordination. Only a sober reading of these cases can permit equality theorists to place the decisions within a broader movement that contests narrow conceptions of legal and social equality. This Article explicates my thesis in three parts. Part I examines the body of works by constitutional theorists, critical legal scholars, and political scientists on judicial majoritarianism in order to construct an analytical framework for considering how Court doctrine reinforces dominant interests. The purpose of Part I is not to determine whether or not (or under what circumstances) the Court should be countermajoritarian, but instead to analyze substantial research that complicates, if not refutes, traditional understanding of the Court as undemocratic. Part II applies the analytical framework developed in Part I to Lawrence, Gratz, and Grutter and concludes that, contrary to popular portrayals, these decisions fortify, rather than aim to dismantle, social hierarchies of race, sexuality, class, and gender. Furthermore, Part II demonstrates that the Court explicitly grounds its rulings in these cases upon democratic considerations, thus lending support to arguments that contest countermajoritarian discourse. Part III utilizes social movement theory to explain the enthusiastic reaction of liberals to Lawrence, Gratz, and Grutter. Part III argues that civil rights organizations enthusiastically received these cases, despite their limitations, because for years these groups have conducted litigation and activism within a conservative legal framework that generally opposes affirmative action and gay rights agendas. Part III then offers strategic considerations for legal theorists and activists who seek progressive legal change before a majoritarian Court

Factless Jurisprudence

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment of the protesting employee. Yet, as Smith\u27s research uncovers, racial protest typically occurs as a reaction to subtle (and explicit) discrimination against persons of color in the workplace. Citing to interdisciplinary works, particularly medical research, Smith argues that confronting acts of racism improves the physical and emotional well-being of blacks, who suffer negative health consequences when they stifle their reactions to racial antagonism. By linking racial protest to worker health, Smith hopes to provide a richer context for juridical analyses of Title VII anti-retaliation litigation, a context that could lead to more antiracist applications of antidiscrimination law. Smith\u27s work makes a critical contribution to legal discourse on the problem of inequality and the limitations of traditional juridical approaches to subordination. While his paper offers a sophisticated and compelling reading of doctrinal failings in this area of law, I want to push his analysis further on three particular points that his work implicates, but which could use more theorizing. First, Smith\u27s article implicates the social or expressive nature of identity categories and the current failure of courts to grapple with expressive identity. Rather than viewing identity categories as closely linked to speech and expression, courts treat identity as separate from the necessary speech and conduct that sustain its existence. Second (and related to the first point), Smith\u27s article illuminates a broader problem in contemporary civil rights jurisprudence - the failure of courts to contextualize their decisions in historical, social, and economic realities (including the reality of expressive identity). Courts often permit racial and other forms of discrimination to escape judicial invalidation because their understanding of race is ahistorical: they do not recognize the subtle mechanisms of discrimination in a society that demands formal equality. While Smith\u27s article addresses this problem in the narrow confines of Title VII jurisprudence, he could enhance his jurisprudential model for understanding the anti-retaliation provisions by analyzing the pervasive and comprehensive nature of decontextualized juridical analysis. Finally, Smith\u27s work should remind readers of the vulnerability of oppressed classes in civil rights litigation. As I argue more thoroughly in a forthcoming work, in the context of equal protection jurisprudence, the Supreme Court has inverted the concepts of privilege and subordination. The Court provides its most heightened level of protection to historically advantaged groups and to members of dominant classes, particularly whites, who challenge remedial legislation or governmental policies designed to alleviate the material consequences of discrimination. At the same time, the Court denies a careful application of civil rights laws in cases involving claims of discrimination by persons of color. In the context of Title VII, as Smith\u27s article illuminates, courts often fail to ground their analyses on the histories of victims of racial discrimination and instead apply a white normative model, which effectively protects acts of white supremacy in the workplace against the efforts of persons of color to counter such indignities through their own protests and in the litigation process. Consequently, courts have effectively favored white supremacy over racial protest; they have inverted the legislative purposes of Title VII. Critical theorists do not treat judicial marginalization of persons of color as merely accidental; rather, they see courts as having a central role in sustaining social hierarchy. The indeterminate nature of law and legal analysis, moreover, heightens the vulnerability of oppressed classes in equality jurisprudence. Despite the perceived gains engendered by a rights approach to justice, the malleable nature of law has meant that legal structures may not adequately secure the interests of oppressed classes